Document Type
Article
Publication
Columbia Law Review
Year
2019
Citation Information
Pratheepan Gulasekaram, Rick Su, and Rose Cuison Villazor, Anti-Sanctuary and Immigration Localism, 119 Colum. L. Rev. 837 (2019), available at https://scholar.law.colorado.edu/faculty-articles/1788.
Abstract
A new front in the war against sanctuary cities has emerged. Until recently, the fight against sanctuary cities has largely focused on the federal government's efforts to defund states like California and cities like Chicago and New York for resisting federal immigration enforcement. Thus far, localities have mainly prevailed against this federal antisanctuary campaign, relying on federalism protections afforded by the Tenth Amendment's anticommandeering and anticoercion doctrines. Recently, however, the battle lines have shified with the proliferation of state-level laws that similarly seek to punish sanctuary cities. States across the country are directly mandating local participation, and courts thus far have upheld those state policies. These laws, like Texas's S.B. 4, prohibit local sanctuary policies and impose severe punishments on the cities and officials that support them. This new state-versus-local terrain has doctrinal, political, and normative implications for the future of local government resistance to immigration enforcement. These implications have thus far been undertheorized in immigration-law scholarship. This Essay seeks to change that.
This Essay is the first to focus on this emerging wave of state antisanctuary laws. In so doing, it makes three contributions. First, descriptively, the Essay documents the upsurge of anti-sanctuary laws that have appeared across the United States and explains how they differ from prior anti-sanctuary laws. Second, doctrinally, it argues that the passage of these laws nudges sanctuary cities to uncharted legal territory in immigration law-localism. Under conventional localism principles, state anti-sanctuary laws are in a position to more fully * Professor of Law, Santa Clara University School of Law. ** Professor of Law, University at Buffalo Law School. *** Professor of Law, Rutgers Law School. The authors wish to thank Jamie Abrarns, Andrew Ayers, Linda Bosniak, Richard Boswell, Ray Brescia, Anupam Chander, Nestor Davidson, Chris Elmendorf, Amanda Frost, Alan Hyde, Irene Joe, Kevin Johnson, Stephen Lee, Daniel Morales, Kathleen Morris, Huyen Pham, Michael Pollack, Leticia Saucedo, Ragini Shah, Darien Shanske, Peter Spiro, Kenneth Stahl, and Allison Brownell Tirres, as well as participants in faculty workshops and paper presentation series at Immigration Law Teachers Conference 2018, Fordham University School of Law, University of North Carolina School of Law, U.C. Davis Law School, University of Louisville Brandeis School of Law, Rutgers Law School, Santa Clara University School of Law, and University of Buffalo School of Law where we presented earlier versions of this Essay. We are grateful to Gin Smith and William Klein for their excellent research assistance. Lastly, we thank the editors of the Columbia Law Review for outstanding editorial assistance. 837 COLUMBIA LAW REVIEW quash local sanctuary policies and effectively conscript local officials into federal immigration enforcement. However, the draconian structure of state anti-sanctuary laws provides a unique context in which to advance what we call "immigration localism" claims and protect three distinct interests that concern local governments: structural integrity, accountability, and local democracy. Third, normatively, this Essay contends that immigration localism provides a more accurate descriptive and theoretical account of how current immigration enforcement operates and promotes community engagement with immigration enforcement. Specifcally, the reorientation toward localism accounts for the powerful role that cities play in immigration enforcement and decenters the federal government's dominant role in that enforcement. To be sure, this Essay recognizes that casting a theoretical gaze toward local discretion may end up emboldening the most exclusionary impulses of localities and supporting local anti-sanctuary policies. In the long run, however, local discretion in immigration enforcement is likely to better serve the interests of noncitizens and citizens alike.
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